Why It’s Not About the Elephants

David Cassuto

Here now, a few words about the Ringling Brothers case.  The suit focused on the treatment of Asian elephants – an endangered species – by the circus.  Much credible evidence suggests that the elephants were mistreated, both by intent (using bullhooks to “train” them) and by the rigors of the circus life, a life which confined them for much of their lives, prevented them from socializing and from moving freely about and generally forced them to live counter to their instincts and nature.  These allegations and others seemed to place the circus in violation of the Endangered Species Act (ESA), whose “Take” provision (Section 9) prohibits the “take” of any endangered species. 16 U.S.C. § 1538(a)(1)(B).

The term “take,” as used in the ESA, includes actions that “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). The Fish and Wildlife Service defines “harm” to include any act that “actually kills or injures wildlife,” including actions that “significantly impair[ ] essential behavioral patterns.” 50 C.F.R. § 17.3. “Harass” under the ESA means: an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.  In sum, the Supreme Court has made clear that the ESA defines “take”  “in the broadest possible manner  to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.’ “ Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or.,515 U.S. 687, 704 (1995).

On the face of it, the allegations regarding the treatment of the elephants land squarely within the scope of behavior prohibited by the ESA.  This lawsuit marked the first time the ESA had been invoked to cover the treatment of performing elephants.  I do not here have time to summarize the merits and facts of the case; you can read more about it here and here and elsewhere.  I must focus on the procedural posture of the case since it ultimately proved dispositive.  

This litigation took 9 years to reach a conclusion that had nothing to do with the merits of the case.  As is so often the case in animal-related litigation, the suit foundered on the issue of standing.  This case was unusual, however, because unlike most animal laws, the statute at issue contained a citizen suit provision.  Citizen suits are a statutorily conferred right to sue to enforce the law (a “private right of action”).  Citizens act as private attorneys general, suing for alleged violations of the law.  Because citizen suits are filed in the public interest, their successful prosecution normally results in fines paid to the government rather than to the plaintiff.  Citizen plaintiffs benefit from the imposition of any injunctive relief as well as from the deterrent power of the suit against future violation.  Attorneys fees are also available.

Federal environmental statutes often contain such provisions and the ESA is no exception.  Indeed, as the Supreme Court has noted, ESA’s citizen suit provision is “an authorization of remarkable breadth when compared with the language Congress ordinarily uses.”  Bennett v.. Spear, 520 U.S. 154, 164-65 (1997).  It states in relevant part:

Except as provided in paragraph (2) of this subsection

any person may commence a civil suit on his

own behalf-

(A) to enjoin any person, including the United States

and any other governmental instrumentality or

agency (to the extent permitted by the eleventh

amendment to the Constitution), who is alleged to

be in violation of any provision of this Act or regulation

issued under the authority thereof; or

(C) against the Secretary where there is alleged a failure

of the Secretary to perform any act or duty under

[Section 1533] which is not discretionary with the

Secretary.

16 U.S.C. § 1540(g)(1).

It bears emphasizing that nowhere in the statute does it say anything about a requirement that the plaintiff bringing the suit be herself injured by the law’s violation.  It simply states that any person may bring suit to enforce the law –a law which protects endangered species.  Since humans are not endangered, it would seem obvious that human injury would have little to do with the equation.  Alas, not so.  You see, the Supreme Court has determined that despite the law’s clear language, the plaintiff must meet an additional set of requirements – requirements of the Court’s own invention.  And so we come once again to the doctrine of standing (an issue I’ve discussed before).

Article III of the Constitution limits the judicial branch’s power of decision to cases or controversies.  Unfortunately, it does not define either one.  This left the Court in a bit of a pickle.  It needed to cabin its jurisdiction somehow in order to protect the separation of powers and to control its docket.  So, it fashioned standing doctrine, a doctrine designed to ensure that the litigating parties are truly adverse and have personal stakes in the outcome,” Over time, this commitment to codifying and safeguarding the constitutional role of the judicial branch has evolved into a set of rules requiring plaintiffs to show “injury-in-fact, causation and redressability.”  Together, these requirements form what the Supreme Court has called the “irreducible constitutional minimum of standing.” Yet, these requirements occur nowhere in the Constitution; they are entirely an invention of the Court.

Furthermore, while these requirements appear straightforward, they are surprisingly opaque.  Over the approximately ninety years since the Court began crafting its criteria for standing, it has contorted both language and precedent in an ongoing and futile attempt to divorce the concept of standing from the substantive issues of law within the cause of action.  I do not here have time to go into standing’s many flaws or the many examples of its flawed application (you can, however, read more by me about it here and more by then professor, now Judge William Fletcher here and more by then Professor now Head of the Office of Information and Regulatory Affairs Cass Sunstein just about everywhere).  Fletcher has declared standing doctrine to be “incoherent” and “permeated with sophistry,” concluding that its intellectual structure is “ill-matched to the task it is asked to perform.” Professor Paul Freund calls it “one of the most amorphous [concepts] in the entire domain of public law,” and Sunstein labels standing’s injury-in-fact requirement “a large scale conceptual mistake.”

But let’s return to the case at hand.  As we saw, the ESA has nothing to do with protecting humans and its citizen enforcement provision says nothing about a requirement of human injury.  Nevertheless, the Court has made clear that, despite the statute’s clear language, citizen suit plaintiffs must meet the court-imposed standing requirements.  This rule, which holds true for all environmental laws despite its illogic and apparent defiance of statutory intent, has hamstrung all sorts of environmental law enforcement, animal law not the least of these.

Like many of its environmental brethren, the Ringling Brothers case initially foundered upon a lack of standing.  But, the Court of Appeals reversed this early holding, finding that one of the plaintiffs, Tom Rider, a former elephant handler for Ringling Brothers, had alleged adequate injury and thus the suit could go forward.  Fast forward a few years.  The district court, having had the case remanded to it for trial, has now determined that the plaintiff’s allegations of injury were not sufficiently credible.  The court found him to be a “professional plaintiff” with no real stake in the elephants’ wellbeing.  Consequently, he lacked standing (as, for other reasons, did the other organizational plaintiffs) and the case was dismissed.

I have no opinion regarding the plaintiff’s relationship to the elephants in question.  I do have an opinion about the court’s inability to reach the merits of the suit because the people who brought it were insufficiently injured by the ongoing harm to the elephants.  The Endangered Species Act aims to protect . . . you guessed it: endangered species.  The Asian Elephant is one such species.  The treatment of the elephants by the circus seems to run afoul of said law.  That same law empowers citizens to sue to enforce it.  Some citizens did.  Yet, they were bounced because they were not injured.

This is nonsense.  Even if one accepts the notion that a plaintiff must show injury for the dispute to rise to the level of case or controversy, it remains nonsense.  Legal injury is a creation of the law.  Congress can and does create such injuries every time it outlaws something.  Here Congress created a type of legal injury when it outlawed the mistreatment of endangered species.  Congress also determined that citizens should have the right to sue to redress this type of injury.  In essence, Congress has made plain that humans are injured when endangered species are injured and humans may therefore sue to redress those injuries.  Yet the courts refuse to permit it.

Why does the Supreme Court, rather than those who make the laws, get to decide what does and does not rise to the level of legal injury?  Apparently, it’s because of the so-called “irreducible constitutional minimum” of standing.  Yet, I submit that these requirements – at least in the context of a congressionally conferred right of action – are neither irreducible, constitutional, nor a minimum.  They are rather arbitrary, counter-productive, and silly.

Imposing extra-textual requirements on a plaintiff filing a citizen suit amounts to a type of judge-made law that one would think would make conservatives scream from the rooftops.  It doesn’t.  This law says any citizen can file suit to enforce it.   There is no ambiguity – no room for judicial interpretation.  Yet in those words, the Court has again and again found another meaning entirely — that the plaintiff prove herself injured.  And not just injured but injured in a manner that the statute was designed to prevent.  As a practical matter, how does that work with a law that is designed to protect endangered species?  Or the water? Or the air?

Justice Scalia, who never met an environmental lawsuit he liked, seeks any and all opportunities to deny environmental plaintiffs standing.  How does an avowed textualist get away with insisting that the clear meaning of the law should have little import and that the dogma of the Court should be inserted instead?  Even allowing for his (and the other justices’) understandable concern about limiting jurisdiction and obeying the Constitution’s dictates, this still seems ultra vires.  It would seem the indisputable province of the legislature to determine what amounts to a legally cognizable injury.  Not so, though.  The Court’s zeal to protect the separation of powers and cabin the jurisdiction of the federal courts has led it to allot itself the power to amend laws at will and to deprive citizens of their right to sue.  As Justice Scalia would say, I dissent from all of that.

To return to where we began, let’s remember that this case was not about people.  It was about elephants.  When the district court made it about people, the elephants got screwed.  Again.

14 Responses

  1. Where does Lujan come into play here?

    While Scalia’s opinion, written for the majority in Lujan, limited who had standing to those suffering concrete, discernible injury (more limiting than we all would prefer and I am not defending it), at least it created a clear enough standard. Couldn’t the advocates for the elephants in this case have found a better plaintiff, such as a scientist who has studied the Indian elephants in question in their natural habitats with plans (and/or plane tickets) to study them in the future? Why shouldn’t we blame the proponents lawyers for going to war with a plaintiff with less than rock solid standing credentials? They must have known standing could be a problem.

  2. Thanks for that post. I enjoyed reading it, but don’t have the time to craft a good comment at the moment.

  3. Will, I just heard a presentation by the lead attorney in the case. Rider was a far better plaintiff than the court’s conclusions of fact indicate (whaddaya know?). Furthermore, I’m not at all certain (indeed, I’m doubtful) that a plaintiff of the type you describe would have had standing here. The issue is injury from the treatment of these particular elephants in captivity, not elephants in general or elephants in the wild.

  4. It will be interesting to see how this decision affects the RICO case that is pending between these parties, since a major component of the RICO claim is the money the organizational plaintiffs were supposedly paying the individual plaintiff for his participation in the case.

  5. without carefully reading the post yet, and being only a little familiar with standing jurisprudence in the enviro/animal context, i’m of the opinion that very little progress can be made without legislative correction. even in the scenarios where a plaintiff has a chance of success, it just feels strained. nrdc flying people to & from alaska for the exclusive purpose of meeting a procedural requirement? what was the legislative purpose of a citizen suit if citizens have to so awkwardly contort themselves just to have a prayer?

    for the provision to have meaning, one would think that congress had in mind numerous, concrete scenarios where it would apply, though maybe they did illustrate such scenarios in the legislative history, and maybe there have been a number of different kinds of cases where it has been met, and i’m just not aware of them because i never really look at it.

    that said, if it was intended to be so limited, i would think that the legislature would have just said: citizens can sue in these limited types of cases, and not it others. though on second thought that was probably intentional. make the standard weird enough that no one can raise too much opposition, then let the courts deal with it. regardless, i’m curious as to how advocates are strategizing in light of these roadblocks.

  6. Mr. Hammerstein,

    Take it from me-all too often in Civil Liberties/Civil Rights litigation the attorneys are so wrapped up in the merits of the case that they overlook the critical importance of just WHO the plaintiff should be to avoid a standing dismissal. And the Supreme Court has made it clear that it favors more than minimally conclusory allegations in a complaint.

  7. […] David Cassuto outlines the broader legal implications and history of the dismissal of a suit brought upon Ringling Brothers Circus on behalf of their elephants on the basis of lack of standing. […]

  8. Guess who I had for ConLaw?

  9. […] have been thinking about elephants.  The recent disappointing judgment in the hard-fought Ringling Brothers case is really only one reason.  I’ve been involved in a few nonlitigation matters trying to help […]

  10. […] jurisprudence and sorely in need of repair (you can read some of my diatribes on the subject here and, at greater length, here and here).  In my view, existence value could and should be the next […]

  11. […] plaintiffs to sue.  The decision was a travesty on many levels (some of which I’ve blogged about elsewhere).  Perhaps most disturbing was the fact that the treatment of the elephants became wholly […]

  12. […] to sue.  The decision was a travesty on many levels (some of which I’ve blogged about elsewhere).  Perhaps most disturbing was the fact that the treatment of the elephants became wholly […]

  13. To repeat the words of the esteemed Benjamin Franklin: being
    ignorant isn’t to be ashamed of. Being unwilling to learn
    is. Thank you for enabling me to learn.

  14. […] to sue.  The decision was a travesty on many levels (some of which I’ve blogged about elsewhere).  Perhaps most disturbing was the fact that the treatment of the elephants became wholly […]

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